Judge rejects motion to dismiss Ark. abortion suit

May 15, 2013

By

Associated Press

A federal judge said Wednesday that a challenge to Arkansas' new law banning most abortions 12 weeks into a pregnancy can proceed, rejecting the state's attempt to get the lawsuit dismissed.
U.S. District Judge Susan Webber Wright ruled that the lawsuit, which was brought by the American Civil Liberties Union of Arkansas and the Center for Reproductive Rights on behalf of two Little Rock abortion providers, made a strong enough case to warrant allowing it to go forward.
"The court finds at this pleading stage, plaintiffs have demonstrated a realistic danger of sustaining a direct injury as a result of Act 301's operation or enforcement, and they have presented a justiciable controversy that is ripe for review," Wright wrote in her nine-page ruling.
A hearing is scheduled Friday on the groups' request for a preliminary injunction against the ban. The lawsuit, which was filed on behalf of Dr. Louis Jerry Edwards and Dr. Tom Tvedten, names members of the State Medical Board as defendants because the board is responsible for licensing medical professionals.
The state has argued that the groups don't have standing to challenge the ban since it won't take effect until in August. Wright rejected that argument, saying the threat of enforcement was enough to challenge the law. Doctors who violate the law face having their medical license revoked by the state.
Wright also rejected the state's argument that the 12-week restriction was not subject to constitutional challenge since it argued the law only limits some abortions before a fetus is considered viable. The ban includes exemptions for rape, incest, the life of the mother and highly lethal fetal disorders.
Wright noted that opponents have argued that 12 weeks is months before a fetus is considered viable, and that 20 percent of abortions in the state occur at or after 12 weeks.
"Accepting these allegations as true, as the court must do at this juncture, the court finds that plaintiffs have alleged facts sufficient to state a claim that the provision of Act 301 that prohibits abortions at 12 weeks gestation when a fetal heartbeat is detected impermissibly infringes a woman's Fourteenth Amendment right to choose to terminate a pregnancy before viability," she wrote.
Arkansas' Republican-led Legislature enacted the ban in March when it overrode Democratic Gov. Mike Beebe's veto of the measure. Beebe and other opponents of the ban say it violates the U.S. Supreme Court's 1973 Roe v. Wade decision that legalized abortion until a fetus could viably survive outside the womb, which is generally considered to be at 22 to 24 weeks.